OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
The offense is aggravated robbery, for the commission of which the jury that found him guilty assessed punishment at confinement for a period of thirty three years. The Court of Appeals affirmed, one Justice dissenting with opinion. Thomas v. State, 629 S.W.2d 112 (Tex.App.—Dallas, 1981).
The sole question presented is whether the Court of Appeals correctly decided that the trial court did not commit reversible error during punishment stage when the prosecutor was winding down his final argument and the following occurred:
Under a heading "Comment on Appellant's Lack of Contrition," the Court of Appeals considered the contention of appellant that such argument was "improper and prejudicial," id., at 114, and, construing it "as a reference to the failure of the character witnesses to give evidence of appellant's contrition rather than on the appellant's failure to testify,"
After an accused has been found guilty, the ultimate issue of punishment to be assessed remains for determination. Essential ingredients of that determination have been legislatively prescribed and judicially crafted. Stiehl v. State, 585 S.W.2d 716, 718 (Tex.Cr.App.1979). Thus, regardless of whether assessed by judge or jury, Article 37.07, § 3(a), V.A.C.C.P., prescribes that "evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character."
So it is that a prosecutor may comment on failure of an accused to present any witnesses or evidence at all in his behalf or to call certain particularized competent and material witnesses to testify about character, reputation or other relevant matters. McKenzie v. State, 617 S.W.2d 211, 219 (Tex.Cr.App.1981); Tarpley v. State, 565 S.W.2d 525, 532 (Tex.Cr.App.1978); Winkle v. State, 506 S.W.2d 891, 897 (Tex. Cr.App.1974). But if the Court has ever held in a noncapital case that contrition is a matter included in the statutory prescription of Article 37.07, § 3(a), supra, such that an accused may offer affirmative testimony of others to show his contriteness, the parties have not called that opinion to our attention. Similarly, "legally admissible" evidence in mitigation of punishment, that Allaben, supra, teaches is proper,
Despite the danger of self interest influencing falsification, a witness is allowed to testify as to his own state of mind. Ray, Law of Evidence (Third Edition) § 1428, 2 Texas Practice 87. So, when an accused does take the stand at a punishment hearing the Court has held that he may be crossexamined as to his feeling of remorse. Wills v. State, 501 S.W.2d 925, 927 (Tex.Cr.App.1973); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969).
However, in criminal cases "selfserving declarations" by an accused are ordinarily inadmissible in his behalf, 24 Tex.Jur.2d 163, § 612; Ray, Law of Evidence § 786, 1A Texas Practice 13. So third parties testifying such declarations were made by accused do not provide evidence of probative value, DeRusse v. State, 579 S.W.2d 224, 233 (Tex.Cr.App.1979); Mendoza v. State, 522 S.W.2d 898, 899 (Tex.Cr.App. 1975); see Ray, Law of Evidence § 872, 1A Texas Practice 115-117. Therefore, we hold that testimony of third persons that an accused has expressed contrition is not "legally admissible" evidence in mitigation when offered by an accused.
Consequently, we do not approve of holding that the argument in question was "not improper." It was improper because the prosecutor faulted appellant for that which he could not accomplish through testimony of his wife and sister in that they were not competent and material witnesses on the subject of the state of his mind with respect to contrition. See McKenzie v. State, supra, at 219-220 and n. 27.
Having concluded that the Court of Appeals erred in overruling appellant's second ground of error for the reason it did, we decide how to treat the decision of the Court of Appeals. See Tex.Cr.App. Rule 304(k). It is our best judgment that in the interest of judicial economy the ground of error overruled by the Court of Appeals should now be directly addressed by this Court.
We have set forth ante a rationale somewhat like that indicated in the dissenting opinion below, to the effect that contrition is personal to an accused and remains his secret unless unburdened to others. Still, the law with respect to an argument smacking of failure of an accused to testify obtains:
Contrastively to Johnson v. State, supra, the argument complained of in the case at bar was not "a direct and flagrant reference to what the jury had not heard appellant say," id., at 650. Rather it called attention to not hearing even a "bit of contrition on the part of this defendant from his witnesses nor his attorney," and suggested that if appellant were sorry for what he had done "you would've heard about it from his witnesses." Though, as we have held, the prosecutor was operating under a misconception of applicable law of evidence, his language literally indicted others than appellant individually and personally. For reasons already developed the argument is improper, but from the standpoint of a lay jury it does not constitute a necessary implication that appellant has failed to testify in his own behalf.
Accordingly, the ground of error is overruled.
The judgment of the Court of Appeals is affirmed.
ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ., concur in the result.
TEAGUE, Judge, dissenting.
Finding myself in total agreement with the dissenting opinion of Justice Whitham of the Dallas Court of Appeals, see Thomas v. State, 629 S.W.2d 112, 116 (Tex.App.— Dallas 1981), and because I believe that Justice Whitham has stated in his extremely well written opinion everything that needs to be stated concerning the appellant's complaint that the prosecuting attorney's jury argument was so prejudicial that it deprived the appellant of a fair trial, this Court should merely state in an opinion that the appellant's petition for discretionary review is granted and that Justice Whitham's opinion is adopted in toto as this Court's opinion. To do more than that adds nothing to the jurisprudence of this State.
However, a majority of this Court does not agree with what I think should be the proper disposition of this cause. In its efforts to do otherwise, it properly concludes that the prosecuting attorney's jury argument was impermissible, albeit for a different reason than that stated by Justice Whitham. Nevertheless, it fails to reverse this conviction. The majority holds that the argument did not constitute a comment on the appellant's failure to testify. The opinion states: "but from the standpoint of a lay jury it does not constitute a necessary implication that appellant has failed to testify in his own behalf." To the conclusion reached by the majority, that the jury argument of the prosecuting attorney does not constitute either a direct or indirect comment on the appellant's failure to testify, I must respectfully dissent.
Justice Whitham stated what the effect of the complained of prosecuting attorney's jury argument was in the following words: "Once the jury's attention is called to the absence of sorrow, remorse, regret or any other act of contrition [on the part of the defendant], it defies logic and common sense to believe that the remark refers to any person other than the defendant." The majority of this Court, although holding that the argument of the prosecuting attorney was improper, fails to reverse this conviction. By failing to reverse this cause for the reasons stated by Justice Whitham, the majority is indirectly putting its stamp of
The Court of Appeals relied mainly on McMahon v. State, 582 S.W.2d 786 (Tex.Cr. App.1978), a capital murder case. The rhetorical questions posed there were:
The defense had called twenty one reputation character witnesses to testify that the accused "probably would not commit acts of violence in the future," testimony clearly relevant to the second special issue required to be submitted to the jury by Article 37.071, § (b)(2).
In capital cases if the pattern were not cut in Smith v. State, 540 S.W.2d 693 (Tex.Cr.App. 1976), it was at least an early opinion treating evidence of remorselessness as it bears on the second special issue. Thus, a psychiatrist, who would become famous for doing so, opined that Smith "felt no remorse or sense of guilt" for his participation in the crime at issue; finding evidence sufficient to support an affirmative answer to special issue two, speaking through the late Judge W. A. Morrison, the Court held:
The accused in Overstreet v. State, 470 S.W.2d 653 (Tex.Cr.App.1971), having been found guilty of robbery by assault, testified only at the hearing on punishment. She indicated disagreement with the verdict of guilt, but asked the jury for leniency. Her lawyer argued for probation, discussing terms and conditions including restitution. Closing, the prosecutor dismissed restitution of $137.90 as insignificant, rejected probation as a deterrent and, turning to rehabilitation, argued:
An objection that the remark is a comment on failure to testify on guilt "in that he is calling for a confession" was overruled. The Court analyzed the situation, viz: